EXHIBIT 10.2
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SBA COMMUNICATIONS CORPORATION
REGISTRATION RIGHTS AGREEMENT
WHEREAS, SBA Communications Corporation (the "Company"), is this date
consummating the Closing pursuant to a Series A Convertible Preferred Stock
Purchase Agreement (the "Stock Purchase Agreement"); and
WHEREAS, the Company is issuing to certain purchasers shares of Series
A Convertible Preferred Stock, par value $.01 per share (the "Series A Preferred
Stock"), and issuing a warrant to purchase shares of Class A Common Stock (each
Person who acquires any such shares of Series A Preferred Stock or holds a
warrant to purchase shares of Class A Common Stock or the shares acquired upon
the exercise of such warrant being herein referred to as a "Preferred
Shareholder"); and
WHEREAS, the Stock Purchase Agreement and the terms of the warrants
provide that the Preferred Shareholders shall be entitled to registration rights
and shall be entitled to become parties to and entitled to the benefits of this
Agreement, upon the attachment hereto of a signature page executed by each such
purchaser;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall be used in this Agreement with the
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following respective meanings:
"Affiliate" shall mean (a) any Person directly or indirectly
controlling, controlled by or under common control with another Person; (b) any
Person owning or controlling ten percent (10%) or more of the outstanding voting
securities of such other Person; (c) any officer, director or partner of such
Person; (d) any liquidating trust, trustee or other similar Person or entity for
any Person; or (e) in case of an individual, any family member to whom such
individual may transfer his or her shares pursuant to the provisions of the
Shareholders Agreement of even date herewith among the parties hereto and Xxxxxx
X. Xxxxxxxxx.
"Agreement" shall mean this Registration Rights Agreement, as amended
from time to time hereafter.
"Commission" shall mean the Securities and Exchange Commission.
"Class A Common Stock" shall mean and include the Company's Class A
Common Stock, par value $.01 per share, as authorized on the date of this
Agreement, and any other securities into which or for which the Company's Class
A Common Stock is converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission (or of any other federal agency then administering the Exchange Act)
thereunder, all as the same shall be in effect at the time.
"Holder" shall mean the Series A Preferred Shareholders or any other
Person who or which is a holder of Registrable Stock and to whom or to which the
rights of registration hereunder have been transferred or assigned pursuant to
the provisions hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean any natural person, partnership, corporation or
other legal entity.
"Registrable Stock" shall mean (a) all Class A Common Stock issued or
issuable pursuant to the conversion of the Series A Preferred Stock or the
exercise of the warrant issued to Alex. Xxxxx & Sons Incorporated upon
consummation of the offering of the Series A Preferred Stock, and (b) any other
shares of Class A Common Stock issued in respect of such shares by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger or consolidation or reorganization, provided, however,
that shares of Class A Common Stock shall only be treated as Registrable Stock
if and so long as they have not been (i) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction or
(ii) sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect to such Class A
Common Stock are removed upon the consummation of such sale.
"Registration Statement" shall mean a registration statement filed by
the Company with the Commission for public offering and sale of equity
securities of the Company (other than a registration statement on Form X-0, Xxxx
X-0, or any successor forms thereto, any registration statement covering only
securities proposed to be issued in exchange for securities or assets of another
corporation, any other form of registration statement not available for
registering the Registrable Stock or any registration statement relating solely
to employee stock option, stock purchase, benefit or similar plans
(collectively, "Employee Plans")).
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the Commission
(or of any other federal agency then administering the Securities Act)
thereunder, all as the same shall be in effect at the time.
"Series A Preferred Shareholders" shall mean those Persons who purchase
shares of Series A Preferred Stock of the Company pursuant to the Stock Purchase
Agreement and who become a party hereto as provided in the Stock Purchase
Agreement.
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2. Required Registration.
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(a) At any time, and from time to time, after the earlier to
occur of (i) six (6) months after a Registration Statement covering an
underwritten initial public offering of shares of Class A Common Stock shall
have become effective, or (ii) June 30, 1998, Holders holding in the aggregate
not less than 25% of the Registrable Stock may request the Company to register
under the Securities Act all or any portion of shares of Registrable Stock held
by such requesting Holder or Holders for sale in the manner specified in such
notice, subject to the conditions set forth in Section 2(b) below.
(b) The Company's obligation to register Registrable Stock
under Section 2(a) above is subject to the condition that the reasonably
anticipated aggregate price to the public of all Registrable Stock for which
registration has been requested by Holders, together with any shares sold by the
Company for its own account, will exceed Fifteen Million Dollars ($15,000,000)
in the case of a registration which is an initial public offering and Three
Million Dollars ($3,000,000) for any other registration, or except as otherwise
provided in this Agreement.
(c) Notwithstanding anything to the contrary contained herein,
the Company shall not be required to seek to cause a Registration Statement to
become effective pursuant to this Section 2:
(i) within one hundred eighty (180) days after the effective date of a
Registration Statement filed by the Company (other than a registration of
securities solely in connection with an Employee Plan), provided, however, that
the Company shall use its best efforts to achieve effectiveness of a
registration requested hereunder promptly following such one hundred eighty
(180) day period if such request is made during such one hundred eighty (180)
day period;
(ii) if the Company shall furnish to holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its shareholders
for a Registration Statement to be filed in the near future due to pending
Company events, or that it would require disclosure of material non-public
information relating to the Company which, in the reasonable opinion of the
Board of Directors, should not be disclosed, then the Company's obligation to
use all reasonable efforts to register, qualify or comply under this Section 2
shall be deferred for a period not to exceed ninety (90) consecutive days from
the date of receipt of written request from such Holders; provided, however,
that the Company may not utilize this right more than once in any twelve (12)
month period;
(iii) if such registration is proposed to be part of a firm commitment
underwritten public offering, unless the underwriters are reasonably acceptable
to the Company; or
(iv) for any Holder requesting such registration who may then dispose of
all of such Holder's Registrable Stock proposed to be so registered pursuant to
Rule 144 promulgated
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under the Securities Act within the three-month period following such proposed
registration (taking into account all sales of Registrable Stock which such
Holder proposes to sell pursuant to Rule 144 during such three-month period).
(d) Following receipt of any notice under this Section 2, the
Company shall immediately notify all Holders of Registrable Stock from whom
notice has not been received that such registration is to be effected and shall
use its best efforts to register under the Securities Act, for public sale in
accordance with the method of disposition specified in such notice from
requesting Holders, the number of shares of Registrable Stock specified in such
notice (and in all notices received by the Company from other Holders within
thirty (30) days after the giving of such notice by the Company). If the
proposed method of disposition is an underwriting, the Holders of a majority of
the shares of Registrable Stock to be sold in such offering may designate the
managing underwriter of such offering, who shall be reasonably acceptable to the
Company. The Company shall be obligated to register Registrable Stock pursuant
to this Section 2 only on three (3) occasions (other than on Form S-3 pursuant
to Section 4 hereof); provided, however, that such obligation shall be deemed
satisfied only when a registration statement covering all shares of Registrable
Stock specified in notices received as aforesaid and which have not been
withdrawn by the Holder thereof or excluded by the underwriter, if any, for sale
in accordance with the method of disposition specified by the requesting
holders, shall have become effective and all such shares shall have been sold
pursuant thereto.
(e) The Company shall be entitled to include in any
Registration Statement referred to in this Section 2, for sale in accordance
with the method of disposition specified by the requesting Holders, shares of
Class A Common Stock to be sold by the Company for its own account and shares to
be sold by any other shareholder pursuant to incidental registration rights
granted to such shareholders in accordance with Section 15, except as and to the
extent that, in the opinion of the managing underwriter, if any, such inclusion
would adversely affect the marketing of the Registrable Stock to be sold or that
such inclusion is otherwise unadvisable. If the Company determines to include
shares to be sold by it in any registration requests pursuant to this Section 2,
such registration shall be deemed to have been a registration under Section 3 of
this Agreement, and not a registration under this Section 2, if the holders of
Registrable Stock are unable to include in any such registration statement all
of the Registrable Stock initially requested for inclusion in such registration
statement. If, in the good-faith judgment of the managing underwriter of such
public offering, if any, the inclusion of all of the shares of Class A Common
Stock requested for inclusion pursuant to this Section 2 would adversely affect
the successful marketing of the proposed offering or a reduction in the number
of shares of Class A Common Stock to be sold is otherwise advisable, then the
number of shares of Class A Common Stock to be included in the offering shall be
reduced to the required level, first, by excluding (on a pro rata basis) shares
of Common Stock to be sold by the Company for its own account and shares
proposed to be sold by such shareholders granted such incidental registration
rights in accordance with Section 15 hereof, and, second, by reducing the
participation of such Holders in such offering pro rata among such Holders
thereof requesting such registration, based upon the number of shares of
Registrable Stock owned by such Holders. Except for Registration Statements on
Form X-0, Xxxx X-0, any successor forms thereto, any registration
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statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation, any other form of registration
statement not available for registering the Registrable Stock or any
registration statement relating solely to Employee Plans, the Company will not
cause any other Registration Statement with respect to its Class A Common Stock
for its own account to become effective less than ninety (90) days after the
effective date of any registration requested pursuant to this Section 2.
(f) Whenever a requested registration is for an underwritten
offering, only shares which are to be included in the underwriting may be
included in the registration unless the managing underwriter consents otherwise.
3. Incidental Registration. Each time the Company shall determine to
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file a Registration Statement (other than pursuant to Section 2 or Section 4) in
connection with the proposed offer and sale for money of any its equity
securities by it or any of its security holders, the Company will give written
notice of its determination to all Holders. Upon the written request of a Holder
given within thirty (30) days after the giving of any such notice by the
Company, the Company will use its best efforts to cause all such shares of
Registrable Stock, the Holders of which have so requested registration thereof,
to be included in such Registration Statement, all to the extent requisite to
permit the sale or other disposition by the prospective seller or sellers of the
Registrable Stock. If the Registration Statement is to cover, in whole or in
part, an underwritten distribution, the Company shall use its best efforts to
cause the Registrable Stock requested for inclusion pursuant to this Section 3
to be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters.
4. Registration on Form S-3. If at any time (a) a Holder or Holders
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request that the Company file a registration statement on Form S-3 or any
successor form thereto for a public offering of all or any portion of the shares
of Registrable Stock held by such requesting Holder or Holders, and (b) the
Company is a registrant entitled to use Form S-3 or any successor thereto to
register such shares, then the Company shall use its best efforts to register
under the Securities Act on Form S-3 or any successor thereto, for public sale
in accordance with the method of disposition specified in such notice, the
number of shares of Registrable Stock specified in such notice; provided,
however, that (a) the Company shall not be obligated to effect any registration
on Form S-3 pursuant to this Section 4 (whether of Registrable Stock of such
Holder or of one or more other Holders) (i) more frequently than twice every
twelve (12) months, (ii) if a certificate of the type discussed in Section
2(c)(ii) has been provided (in which case the restrictions on the Company's
right to delay such a registration set forth in Section 2(c)(ii) shall apply),
(iii) unless the aggregate offering price in each registration on Form S-3
equals $1.0 million or more; or (iv) if such registration is proposed to be part
of a firm commitment underwritten public offering, unless the underwriters are
reasonably acceptable to the Company, and (b) the Company shall not be obligated
to effect any such registration for any Holder desiring to participate in such
registration who may then dispose of all such Holder's Registrable Stock
proposed to be so registered pursuant to Rule 144 under the Securities Act
within the three (3) months period following such proposed registration on Form
S-3 (taking into account all sales of Registrable Stock which such Holder
proposes to sell pursuant to
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Rule 144 during such three (3) month period). Whenever the Company is required
by this Section 4 to use its best efforts to effect the registration of
Registrable Stock, each of the procedures and requirements of Section 2
(including, but not limited to, the requirements that the Company notify all
Holders from whom notice has not been received and provide them with the
opportunity to participate in the offering) shall apply to such registration,
provided, however, in all events, other than as set forth in this Section 4,
there shall be no limitation on the number of registrations on Form S-3 which
may be requested and obtained under this Section 4. Notwithstanding the
foregoing, the Company shall not be required to seek to cause a Registration
Statement to become effective pursuant to this Section 4 within one hundred
eighty days (180) days after the effective date of a Registration Statement
filed by the Company (other than a registration of securities solely in
connection with an Employee Plan); provided, that the Company shall use its best
efforts to achieve effectiveness of a registration requested pursuant to this
Section 4 promptly following such one hundred eighty (180) day period if such
request is made during such one hundred eighty (180) day period.
5. Registration Procedures. If and whenever the Company is required by
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the provisions of Section 2, 3 or 4 hereof to effect the registration of shares
of Registrable Stock under the Securities Act, the Company will at its expense,
as expeditiously as possible:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, (i) prepare and file with the Commission a
Registration Statement with respect to such securities and use its best efforts
to cause such Registration Statement to become and remain effective for the
period of the distribution contemplated thereby (determined as hereinafter
provided), (ii) prepare and file with the Commission such amendments to such
Registration Statement and supplements to the prospectus contained therein as
may be necessary to keep such Registration Statement effective and such
Registration Statement and prospectus contained therein accurate and complete
for the period of the distribution contemplated thereby (determined as
hereinafter provided), and (iii) comply with the provisions of the Securities
Act with respect to the distribution of all shares of Registrable Stock covered
by such Registration Statement in accordance with the sellers' intended method
of distribution set forth in such Registration Statement for such period;
(b) If the offering is to be underwritten in whole or in part,
enter into a written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter of the public offering, the Company and
the Holders participating in such offering;
(c) Furnish to the participating Holders and to the
underwriters such reasonable number of copies of the Registration Statement,
preliminary prospectus, final prospectus and such other documents as such
underwriters and participating Holders may reasonably request in order to
facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the securities
covered by such Registration Statement under such state securities or blue sky
laws of such jurisdictions (i) as shall
be reasonably appropriate for distribution of the securities covered by such
Registration Statement
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and (ii) as such participating Holders or, in the case of an underwritten public
offering, the managing underwriter, may reasonably request within twenty (20)
days following the original filing of such Registration Statement, except that
the Company shall not for any purpose be required to execute a general consent
to service of process, to qualify to do business as a foreign corporation in any
jurisdiction where it is not so qualified or to subject itself to taxation in
such jurisdiction;
(e) Promptly notify such participating Holders and each
underwriter under the Registration Statement, at any time when a prospectus
relating to such securities is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which any such prospectus or any other prospectus as then in effect
would include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(f) During the time period during which the Company is
required, pursuant to Section 5(a), to cause a Registration Statement to be
effective, in case any of such participating Holders or any underwriter for any
such Holders is required to deliver a prospectus at a time when the prospectus
then in circulation is not in compliance with the Securities Act or the rules
and regulations of the Commission, prepare promptly upon request such amendments
or supplements to such Registration Statement and such prospectus as may be
necessary in order for such prospectus to comply with the requirements of the
Securities Act and such rules and regulations;
(g) Advise such participating Holders promptly after it shall
receive notice or obtain knowledge thereof of the issuance of any stop order by
the Commission or any state securities commissions or agency suspending the
effectiveness of such Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued;
(h) Use its best efforts to ensure the obtaining of all
necessary approvals from the NASD; and
(i) Cause the Registrable Stock registered pursuant to the
terms of this Agreement to be listed with Nasdaq or on a securities exchange
(which shall be the same as where similar securities of the Company are listed,
if the Company has listed securities at the time of such registration).
As used herein, the "period of distribution" of Registrable Stock in a
firm commitment underwritten public offering shall be deemed to extend until the
first to occur of (A) each underwriter completing the distribution of all
securities purchased by it or (B) ninety (90) days after the effective date of
the Registration Statement, and the "period of distribution" of Registrable
Stock in any other registration shall be deemed to extend until the earlier of
(i) the sale of all Registrable Stock covered thereby and (ii) one hundred
eighty (180) days after the effective date of the Registration Statement, if on
Form X-0, X-0 or SB-2 (or any such form of registration statement subsequently
adopted as a successor to such Form X-0, X-0 or SB-2) and ninety (90) days after
the effective date of the
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Registration Statement, if on Form S-3 (or any such form of registration
statement subsequently adopted as a successor to such Form S-3).
In connection with each registration hereunder, the Holders of
Registrable Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to ensure compliance with federal and applicable state
securities laws.
In the event of any underwritten distribution pursuant to Sections 2, 3
or 4 hereof, the number of shares of Registrable Stock of the Holders and the
number of other securities ("Other Securities") to be included in such offering
(pursuant to registration rights granted to Persons pursuant to the provisions
of Section 15 (herein "Other Persons")) may be reduced (except for shares to be
sold by the Company in an offering initiated by the Company or prorata with
shares to be sold by any Other Person pursuant to demand registration rights
granted to such party in accordance with Section 15) if and to the extent that
the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company or
another shareholder of the Company therein or that such reduction is otherwise
advisable; provided, however, that any such reduction shall be accomplished
first pro rata among any such Other Persons holding Other Securities based upon
the number of shares of Other Securities then held by such Other Persons
eligible for inclusion in such registration and, second, pro rata among all
Holders of Registrable Stock. Notwithstanding the foregoing provisions, the
Company may withdraw any Registration Statement referred to in Sections 2, 3 or
4 without thereby incurring any liability to holders of shares of Registrable
Stock. In addition, whenever a registration pursuant to Sections 2, 3 or 4 is
for an underwritten offering, only shares which are to be included in the
underwriting may be included in the registration unless the managing underwriter
consents otherwise
6. Expenses.
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(a) With respect to each registration effected pursuant to
Section 2, 3 or 4 hereof, all fees, costs and expenses of and incidental to such
registration and the public offering in connection therewith shall be borne by
the Company; provided, however, that (i) security holders participating in any
such registration shall bear their pro rata share of the underwriting discounts
and selling commissions and (ii) any such fee, cost or expense which does not
constitute a normal fee, cost or expense of such registration and which is
attributable solely to a particular security holder participating in any such
registration shall be borne by that holder.
(b) The fees, costs and expenses of registration to be borne
as provided in paragraph (a) above shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of counsel for
the underwriter or underwriters of such securities (if and only if the Company
and/or selling security holders are otherwise required to bear such fees and
disbursements), all legal fees and disbursements and other expenses of complying
with state
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securities or blue sky laws of any jurisdictions in which the securities to be
offered are to be registered or qualified, reasonable fees and disbursements of
one counsel for the selling security holders and the premiums and other costs of
policies of insurance insuring the Company against liability arising out of such
public offering.
7. Indemnification and Contribution.
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(a) In the event of a registration of any shares of
Registrable Stock pursuant to Section 2, 3, or 4, the Company will indemnify and
hold harmless each Holder of such shares of Registrable Stock included in a
Registration Statement pursuant to the provisions of this Agreement and any
underwriter (as defined in the Securities Act) of such Registrable Stock and any
person who controls such Holder or such underwriter within the meaning of the
Securities Act, and each of their successors from and against, and will
reimburse such Holder and each such underwriter and controlling person with
respect to, any and all claims, actions, demands, losses, damages, liabilities,
cost and expenses to which such Holder or any such underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or expenses arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in such Registration Statement, any prospectus contained
therein or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
or arise out of any violation by the Company of any rule or regulation under the
Securities Act or any state securities laws applicable to the Company and
relating to action or inaction required of the Company in connection with such
regulation; provided, however, that the Company will not be liable in any such
case to the extent, but only to the extent, that any such claim, action, demand,
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in strict conformity with information furnished by
such Holder, such underwriter or such controlling person in writing specifically
for use in the preparation thereof; provided, further, that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in the
Final Prospectus, such indemnity agreement shall not inure to the benefit of any
underwriter or any Holder or controlling person of such Holder or indemnitee if
there is no underwriter or if such underwriter or Holder failed to deliver a
copy of the Final Prospectus to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is required
by the Securities Act; and provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence obligations.
(b) Each Holder of shares of Registrable Stock, severally and
not jointly, which shares are included in a registration pursuant to the
provisions of this Agreement, will indemnify and hold harmless the Company, each
person, if any, who controls the Company within the meaning of the Securities
Act, each officer of the Company who signs the Registration Statement, each
director of the Company, each underwriter and any person who controls the
underwriter and each of their successors from and against, and will reimburse
the Company and such officer, director, underwriter
or controlling person with respect to, any and all claims, actions, demands,
losses, damages,
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liabilities, costs or expenses to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in such
Registration Statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they are made, not misleading; provided, however, that such Holder will be
liable in any such case to the extent, but only to the extent, that any such
claim, action, demand, loss, damage, liability, cost or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in strict conformity with written
information furnished by such Holder specifically for use in the preparation
thereof; provided, however, that the liability of each Holder hereunder shall be
limited to the proportion of any such claim, action, demand, loss, damage,
liability, cost or expense which is equal to the proportion that the public
offering price of the shares of Registrable Stock sold by such Holder under such
Registration Statement bears to the total offering price of all securities sold
thereunder, but not, in any event, to exceed the proceeds received by such
Holder from the sale of shares of Registrable Stock covered by the Registration
Statement; provided, further, that the foregoing indemnity agreement is subject
to the condition that, insofar as it related to any such untrue statement (or
alleged untrue statement) or omission (or alleged omission) made in the
preliminary prospectus but eliminated or remedied in the amended prospectus on
file with the Commission at the time the Registration Statement becomes
effective or in the amended prospectus on file with the Commission pursuant to
Rule 424(b) (the "Final Prospectus"), such indemnity agreement shall not inure
to the benefit of any indemnitee if a copy of the Final Prospectus was not
furnished to the person or entity asserting the loss, liability, claim or damage
at or prior to the time such furnishing is required by the Securities Act; and
provided, further, that this indemnity shall not be deemed to relieve any
underwriter of any of its due diligence obligations.
(c) Promptly after receipt by a party to be indemnified
pursuant to the provisions of paragraph (a) or (b) of this Section 7 (an
"indemnified party") of notice of the commencement of any action involving the
subject matter of the foregoing indemnity provisions, such indemnified party
will, if a claim thereof is to be made against the indemnifying party pursuant
to the provisions of paragraph (a) or (b) of this Section 7, notify the
indemnifying party of the commencement thereof; but the omission to so notify
the indemnifying party will not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 7 and shall not
relieve the indemnifying party from liability under this Section 7 unless such
indemnifying party is prejudiced by such omission. In case such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party pursuant to the provisions of such paragraph (a) and (b) of
this Section 7 for any legal expense
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subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it that are different from or
additional to those available to the indemnifying party or if the interests of
the indemnified party reasonably may be deemed to conflict with the interests of
the indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred. No indemnifying party shall be liable to an
indemnified party for any settlement of any action or claim without the consent
of the indemnifying party and no indemnifying party may unreasonable withhold
its consent to any such settlement. No indemnifying party will, except with the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(d) In order to provide for just and equitable contributions
to joint liability under the Securities Act in any case in which either (i) any
Holder exercising rights under this Agreement, or any controlling person of any
such Holder, makes a claim for indemnification pursuant to this Section 7 but it
is judicially determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or the denial of
the last right of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 7 provides for indemnification
in such case, or (ii) contribution under the Securities Act may be required on
the part of any such selling Holder or any such controlling person in
circumstances for which indemnification is provided under this Section 7, then,
and in each such case, the Company and such Holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and of the Holder of
Registrable Stock on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and of the Holder of Registrable Stock on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
by the Holder of Registrable Stock on the other, and each party's relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, however, that in any such case, (A) no
person or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent misrepresentation and (B)
no such Holder will be required to contribute any amount in excess of the
proceeds received by such Holder from the sales of Registrable Stock covered by
the Registration Statement.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection
11
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.
8. Reporting Requirements Under Securities Exchange Act of 1934. When
---------------------------------------------------------------
it is first legally required to do so, the Company shall register its Class A
Common Stock under Section 12 of the Exchange Act and shall keep effective such
registration and shall timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 of the Exchange Act.
From and after the effective date of the first Registration Statement filed by
the Company, the Company shall (whether or not it shall then be required to do
so) timely file such information, documents and reports as the Commission may
require or prescribe under Section 13 or 15(d) (whichever is applicable) of the
Exchange Act. Immediately upon becoming subject to the reporting requirements of
either Section 13 or 15(d) of the Exchange Act, the Company shall forthwith upon
request furnish any Holder of Registrable Stock (a) a written statement by the
Company that it has complied with such reporting requirements, (b) a copy of the
most recent annual or quarterly report of the Company, and (c) such other
reports and documents filed by the Company with the Commission as such Holder
may reasonably request in availing itself of an exemption for the sale of
Registrable Stock without registration under the Securities Act. The Company
acknowledges and agrees that the purposes of the requirements contained in this
Section 8 are (i) to enable any such Holder to comply with the current public
information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar or successor exemptive provision),
and (ii) to qualify the Company for the use of Registration Statements on Form
S-3. In addition, the Company shall take such other measures and file such other
information, documents and reports as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar or successor exemptive provision hereafter in effect) and
the use of Form S-3. The Company also covenants to use its best efforts, to the
extent that it is reasonably within its power to do so, to qualify for the use
of Form S-3. From and after the effective date of the first Registration
Statement filed by the Company, the Company agrees to use its reasonable best
efforts to facilitate and expedite transfers of Registrable Stock pursuant to
Rule 144 under the Securities Act (or any similar or successor exemptive
provision hereafter in effect), which efforts shall include timely notice to its
transfer agent to expedite such transfers of Registrable Stock.
9. Shareholder Information. The Company may require each Holder of
Registrable Stock as to which any registration is to be effected pursuant to
this Agreement to furnish the Company in a timely manner such information with
respect to such Holder and the distribution of such Registrable Stock as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
10. Restrictions on Offerings. Upon written request from the Company
and its underwriters, each Holder agrees, for himself, herself and/or itself and
any Affiliates or other transferees of his, her or its Registrable Stock, not
to, directly or indirectly, offer, sell, pledge, contract to sell, grant any
option to purchase, grant a security interest in, hypothecate or otherwise
12
sell or dispose of any Registrable Stock or other equity securities of the
Company (including, without limitation, equity securities that may be deemed to
be beneficially owned by the Holder in accordance with the rules and regulations
of the Commission and equity securities that may be issued upon the exercise of
a stock option or warrant) or any securities convertible into, derivative of or
exercisable or exchangeable for any rights to purchase or acquire equity
securities of the Company, whether now owned or hereafter acquired during the
period commencing on the date of the underwriting agreement signed in connection
with the Company's initial public offering and ending on the close of business
on the one hundred and eightieth (180th) day after the date of the Company's
Final Prospectus relating to such initial public offering, and for up to 90 days
in connection with subsequent registrations, if any (but only to the extent that
such Holder is a beneficial owner of at least 5% of the outstanding Common
Stock), or for such longer period as may be required by any regulatory agency.
The restriction contained in this Section 10 shall not apply (i) to sales of any
Registrable Stock or other securities sold by a Holder in such public offering,
(to the extent such Person is entitled or permitted to do so) and (ii) unless
each executive officer and director of the Company and any employee holding five
percent (5%) or more of the outstanding Common Stock has agreed to the same
restriction. In addition, the Company will waive this restriction if consented
to by the managing underwriter. Except in a public offering registered under the
Securities Act, the Company shall not issue or sell any equity security unless
each recipient thereof agrees in writing with the Company not to offer to sell
or sell such equity security on terms at least as restrictive as those set forth
herein.
11. Specific Enforcement. All of the parties hereto acknowledge that
----------------------
the parties will be irreparably damaged in the event that this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants or conditions of this Agreement by any of the parties hereto, the
other parties shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage, or a
decree for specific performance, in accordance with the provisions hereof.
12. Notices. Any notice required or permitted to be given hereunder
--------
shall be in writing and shall be deemed to be properly given when sent by
registered or certified mail, return receipt requested, by Federal Express or
other guaranteed overnight delivery service or by facsimile transmission,
addressed as follows:
If to the Company: SBA Communications Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, President
If to the Holders: At their respective addresses as set forth on
their signature pages hereto;
13
and if to any other Holder at such Holder's address for notice as set forth in
the register maintained by the Company or, as to any of the foregoing, to such
other address as any such party may give the others notice of pursuant to this
Section 12, provided, however, that a change of address shall only be effective
upon receipt.
13. Governing Law. This Agreement shall be governed by, and construed
-------------
in accordance with, the laws of the State of Florida, without giving effect to
any conflict or choice of law provisions.
14. Waivers; Amendments. No waiver of any right hereunder by any party
---------------------
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and by Holders of at least seventy-five percent (75%) of the Registrable
Stock held by the Holders (including for this purpose all shares of Class A
Common Stock issued or issuable upon conversion of the Series A Preferred
Stock); provided that (a) the provisions of Section 10 may not be amended unless
such amendment is executed by each Holder affected thereby and (b) the
provisions of this Section 14 may not be amended unless such amendment is
executed by each Holder.
15. Other Registration Rights.
--------------------------
(a) Within the limitations prescribed by this Section 15(a),
but not otherwise, the Company may grant to subsequent investors in the Company
rights of incidental registration (such as those rights provided in Section 3
hereof); provided that (i) such rights may only pertain to shares of the Class A
Common Stock authorized after the date hereof, (ii) such rights may be granted
with respect to registrations requested by Holders pursuant to Section 2 or
Section 4 hereof, but only in respect of that portion of any such registration
as remains after inclusion of all shares of Registrable Stock requested by
Holders, and (iii) such rights may be granted with respect to registrations
initiated by the Company, but only in respect of that portion of any such
registration as is available under the limitations set forth in Section 3
hereof.
(b) The Company may not grant to subsequent investors in the
Company rights of registration upon request (such as those rights provided in
Sections 2 and 4 hereof) unless (i) such rights pertain only to shares of Class
A Common Stock, authorized after the date hereof, (ii) such rights shall not
become exercisable prior to the first registration pursuant to Section 2 hereof
or prior to the first Registration Statement filed by the Company, (iii) all
Holders are given enforceable contractual rights to participate in registrations
requested by such subsequent investors (but subject to the right of prorata
allocation of registration for such subsequent investors in the event of
underwriters' cutbacks), (iv) such rights shall not permit such investors the
right to cause a registration to become effective earlier than ninety (90) days
after the effective date of any
14
registration requested by the Holders pursuant to Section 2, and (v) such rights
shall not be more favorable than those granted to the Holders.
(c) The parties acknowledge that as of the date hereof the
Company has granted rights of incidental registration (such as those rights
provided in Section 3 hereof) and rights of registration on Form S-3 upon
request (such as those rights provided in Section 4 hereof) to the holders of
9,235,292 shares (including options to acquire such shares) of Class B Common
Stock and Class A Common Stock or their equivalents.
16. Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the respective legal representatives, successors
and assigns of the parties hereto; provided, however, that the registration
rights conferred herein on the Holders shall only inure to the benefit of a
transferee of shares of Class A Common Stock if:
(a) such transferee agrees to the provisions of Section 10 in advance if
required by the underwriters;
(b) there is transferred to such transferee at least
thirty-three and one-third percent (331/3%) of the total number of shares of
Registrable Stock originally issued (including for this purpose shares of
Registrable Stock issuable upon conversion of the Series A Preferred Stock) to
such transferor Holder (as such number is adjusted in the event that the
outstanding shares of Class A Common Stock shall have been changed into a
different number of shares by reason of any recapitalization, split-up,
combination, exchange of shares, readjustment or a stock dividend thereon);
(c) such transferee (other than a transferee that is already a
Holder) delivers to the Company a written instrument by which such transferee
identifies itself, gives the Company notice of such rights, indicates the shares
of Registrable Stock owned by it and agrees to be bound by the obligations
imposed upon it hereunder (any such transfer shall not be effective unless and
until the Company shall have received such written instrument);
(d) any transfer to a subsequent transferee or a transferee
also complies with the provisions of this Section 16; and
(e) such transferee is not a Person engaged in a competitive activity with
the Company.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. Headings. Headings in this Agreement are included for reference
only and shall have no effect upon the construction or interpretation of any
part of this Agreement.
15
19. Severability. If any provision of this Agreement shall be held to
-------------
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a fully authorized signatory, and each Holder has caused this
Agreement to be executed by such individual Holder or by a duly authorized
signatory, as of the 6th day of March, 1997.
ATTEST: SBA COMMUNICATIONS CORPORATION
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
_____________________________ By:________________________________
Secretary Xxxxxx X. Xxxxxxxxx, President
PREFERRED SHAREHOLDERS:
[See counterpart signature pages]
16
